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The “rule of law” and the concept of an “essentially contested concept”

Recently in the course of some writing I’ve had to address the problem of “essentially contested concepts.” But because the piece I’m writing has a strict word limit, I can’t explain there why I think the concept of the “essentially contested concept” is incoherent. My objection is too long for a footnote and much too short for an entire article. Fortunately, it’s just the right length for a blog post. Here it is. References are at the end.

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Some scholars (e.g., Peerenboom 2002, 2) view terms such as “rule of law” as “essentially contested concepts” in the sense of the term developed by philosopher W.B. Gallie (Gallie 1956). I disagree on the grounds that Gallie’s conception is itself incoherent.

Gallie defines essentially contested concepts as “concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users.” (Gallie 1956, 169) Moreover, these disputes “cannot be settled by appeal to empirical evidence, linguistic usage, or the canons of logic alone.” (Gray 1977, 344) Furthermore, there is no right answer to the dispute:

The term essentially contested concepts gives a name to a problematic situation that many people recognize: that in certain kinds of talk there is a variety of meanings employed for key terms in an argument, and there is a feeling that dogmatism (“My answer is right and all others are wrong”), skepticism (“All answers are equally true (or false); everyone has a right to his own truth”), and eclecticism (“Each meaning gives a partial view so the more meanings the better”) are none of them the appropriate attitude towards that variety of meanings.

(Garver 1978, 168.)

A key question, however, is why people feel it is worthwhile to engage in the dispute. Instead of debating whether the concept X means A, B, and C or instead D, E, and F, why not just say, “All right; you can have X as the name for a concept meaning A, B, and C, and I’ll create Y as the name for a concept meaning D, E, and F”? Why does each side insist on its right to define X? The answer is that X is a value-laden term—either positive or negative—and each side seeks to take advantage of that value in applying its definition. Nobody thinks it worthwhile to argue about the meaning of “kilogram” or “year.”

But what that means is that what is being contested is not a concept, but rather merely a verbal formulation—a string of letters on the page. In other words, Gallie does not show how there could be a single thing identifiable as a concept whose meaning is nevertheless essentially contested. A word is identifiable as a single thing, but to identify a concept as a single thing requires an identifiable meaning, but that is not available if the whole premise is that the meaning is contested. To see that this is so, consider what happens when we try to bring speakers of other languages into a debate about the meaning of an essentially contested concept. If we are truly talking about a concept and not just a verbal formulation, the discussion should be able to transcend language. Yet how are we going to identify the relevant words to express the concept in the foreign language without an uncontested idea of the essence of the concept? How would we know the translation was correct?

Put another way, Gallie does not show why a debate about whether a country exhibits the rule of law cannot be settled to the satisfaction of everyone simply by saying, “By definition X it does, and by definition Y it doesn’t.” Nobody has the power to police language; we cannot dictate what a term must mean. The right approach is to recognize why people want to have the debate: it is because they think the term “rule of law” has a positive valence. That being so, the way to settle—or at least to rationally discuss—whose definition is better is first to ask why “rule of law” has a positive valence, and then to ask whose definition is more deserving of that positive valence. Is one party claiming falsely to meet the definition of the other party, or are they redefining it, while at the same time hoping to free-ride off the positive valence of the other party’s definition, hoping nobody will notice the different definition?

Gallie in fact recognizes the problem, and attempts to address it by using the idea of an original “examplar” [sic]: everyone agrees that such-and-such a thing is an example of the concept, even if they do not agree on why. This is Gallie’s touchstone for ensuring that we are really talking about the same concept and not two different concepts contesting over the right to the same name.

But this solution is not satisfactory; surely the reasons matter. Suppose we are debating the meaning of “just” and agree on ancient Athens as an examplar of a “just” society. Some people think it’s just because it had a (limited) democracy and citizens held office by drawing lots. Others might think it was an examplar of the just society because it was stratified, with slaves and women on the bottom, and exercised control over thought (forcing Socrates to take the hemlock because he was poisoning the minds of the young). Is anything gained by saying that both parties are talking about the same “concept,” as opposed to simply laying opposing claims to the same prestigious word?

Some of the other criticism of the examplar concept misses the point. Ernest Gellner, for example, states that “Gallie is, implicitly, betraying his own idea: he talks as if, behind each ‘essentially contested concept’, there was, hidden away in some platonic heaven, a non-contested, unambiguously defined and fully determinate concept or exemplar.” (Gellner 1967, 53.) And Michael Freeden argues that “the postulation of such an exemplar is in effect inimical to the very notion of essential contestability, as it presumes an agreed or correct position from which deviations have occurred.” (Freeden 1996, 60.)

But both misunderstand, I believe, Gallie’s notion of the examplar. Gallie’s examplar simply stands as an agreed instance of the concept, but he does not require that everyone agree on why it is an instance of the concept. Thus, it is not unambiguously defined or an agreed position from which deviations occur. It is precisely this lack of concern for reasons, not a hidden non-contested definition, that constitutes the fatal flaw in Gallie’s claim that the concept of the examplar provides a response to the charge that he is merely talking about verbal formulations instead of concepts.

2 thoughts on “The “rule of law” and the concept of an “essentially contested concept””

I think the whole point of Gallie’s definition is that an “essentially contested concept” is one in which society will not allow you to stipulate a definition. A couple of years ago, I wrote an essay revolving around a Razian definition of rule of law. I stated, quite clearly in both the introduction and the first part, that my definition was a stipulation drawn from Raz. Twice, the essay has rejected because one of the reviewers simply would not accept my stipulation. For example, one reviewer rejected the essay by citing on a literature that treated rule of law as simply being comprised of judicial review. At least to these (peer) reviewers, the meaning of rule of law was something that existed beyond stipulation. I wonder if that is the phenomenon that Gallie’s definition is trying to capture?

Good question. Here’s what I think: what if you had said, “Raz has a certain concept – a model of social organization – that for convenience’s sake I’ll call ‘Foobaristry’. Here’s what he means by it.” And then you spell out Raz’s conception/definition, and then get on with your discussion. I take it that that approach would not have hampered your discussion; you were interested in the ideas spelled out in Raz’s definition, not the brief label that we might attach to those ideas. That should also have satisfied your reviewers; they could not have come up with some competing content for the term “Foobaristry” that they thought was superior to yours. What this shows to me is that what is contested is not a concept; what is contested is a verbal formula. I see what you mean about your reviewers considering “ROL” to be something that is beyond stipulation; it’s not acceptable to them to say, “When I say ‘ROL’, I mean ‘mass murder of ethnic minorities’. Nazi Germany had ROL.” But this is my point: they think that way because ROL is a value-laden term. They wouldn’t have objected if you had said the same thing, but substituted “foobar” for “ROL”. I think Gallie misses the boat in failing to consider why some terms are contested and others aren’t. Once we understand that, then we would go on to ask why a particular term has a positive or negative valence, and that is our guide in assessing whether various definitions are reasonable or not.